-CMK Carden et al v. Chenega Security & Protection Services, LLC, No. 2:2009cv01799 - Document 103 (E.D. Cal. 2011)

Court Description: ORDER DENYING 39 Motion for Summary Judgment signed by Judge William B. Shubb on 5/9/11. (Manzer, C)
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-CMK Carden et al v. Chenega Security & Protection Services, LLC Doc. 103 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA ----oo0oo---- 10 11 12 13 14 15 16 NO. CIV. 2:09-1799 WBS CMK JAMES T. CARDEN, JR., ROBERT L. FOX, LEON W. HEDRICK, ROBERT B. KLEE, GEORGE M. LEMBO, LOREN E. LOVELAND, TERRY D. MYERS, CHARLES R. SAMUELSON, MICHAEL B. SCHAEFER, ARTHUR J. SCHUBERT, THURLOW E. WILLIAMS, MICHELLE W. WOODS, RAYMOND E. YOUNG, WILLIAM H. ZIEGLER, MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT 17 Plaintiffs, 18 v. 19 20 21 CHENEGA SECURITY & PROTECTION SERVICES, LLC, Defendant. / 22 ----oo0oo---23 24 Plaintiffs James T. Carden, Jr., Robert L. Fox, Leon W. 25 Hedrick, Robert B. Klee, George M. Lembo, Loren E. Loveland, 26 Terry D. Myers, Charles R. Samuelson, Michael B. Schaefer, Arthur 27 J. Schubert, Thurlow E. Williams, Michelle W. Woods, Raymond E. 28 Young, and William H. Ziegler brought this action, alleging that 1 Dockets.Justia.com 1 defendant Chenega Security and Protection Services, LLC 2 (“Chenega”), discriminated against plaintiffs based on their ages 3 by failing to hire them for security guard positions. 4 plaintiffs except George M. Lembo have since dismissed their 5 claims. 6 pursuant to Federal Rule of Civil Procedure 56. 7 I. Chenega now moves for summary judgment on all claims Standard Summary judgment is proper “if the movant shows that 8 9 All there is no genuine dispute as to any material fact and the 10 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 11 P. 56(a). 12 of the suit, and a genuine issue is one that could permit a 13 reasonable jury to enter a verdict in the non-moving party’s 14 favor. 15 (1986). 16 burden of establishing the absence of a genuine issue of material 17 fact and can satisfy this burden by presenting evidence that 18 negates an essential element of the non-moving party’s case. 19 Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 20 Alternatively, the moving party can demonstrate that the 21 non-moving party cannot produce evidence to support an essential 22 element upon which it will bear the burden of proof at trial. 23 Id. A material fact is one that could affect the outcome Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 The party moving for summary judgment bears the initial 24 Once the moving party meets its initial burden, the 25 burden shifts to the non-moving party to “designate ‘specific 26 facts showing that there is a genuine issue for trial.’” 27 324 (quoting then-Fed. R. Civ. P. 56(e)). 28 the non-moving party must “do more than simply show that there is 2 Id. at To carry this burden, 1 some metaphysical doubt as to the material facts.” Matsushita 2 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 3 “The mere existence of a scintilla of evidence . . . will be 4 insufficient; there must be evidence on which the jury could 5 reasonably find for the [non-moving party].” 6 at 252. Anderson, 477 U.S. 7 In deciding a summary judgment motion, the court must 8 view the evidence in the light most favorable to the non-moving 9 party and draw all justifiable inferences in its favor. Id. at 10 255. “Credibility determinations, the weighing of the evidence, 11 and the drawing of legitimate inferences from the facts are jury 12 functions, not those of a judge . . . ruling on a motion for 13 summary judgment . . . .” 14 II. Id. Relevant Facts 15 Lembo began working for Pinkerton, a security company, 16 in 1994. (Deschler Decl. in Supp. of Def.’s Mot. for Summ. J. 17 (“Deschler Decl.”) (Docket Nos. 43-49) Ex. 1.D (“Def.’s Lembo 18 Dep.”) at 21:5-13.) 19 Dam, where he worked as an armed guard for Pinkerton. 20 27:11-28:12.) 21 with Pinkerton would be ending because Chenega had been awarded 22 the contract to supply security services at Shasta Dam. 23 46:23-47:11.) 24 of the hiring process conducted by Chenega, it is undisputed that 25 Chenega advertised for security guard positions, accepting 26 applications from both Pinkerton employees and outsiders. 27 Decl. in Supp. of Def.’s Mot. for Summ. J. (“Barry Decl.”) 28 (Docket No. 53) ¶ 5; Deschler Decl. Ex. 1.M (“Gutierrez Dep.”) at In 2004, Lembo was transferred to Shasta (Id. at In mid-2007, Lembo learned that his employment (Id. at Although the parties dispute some of the details 3 (Barry 1 27:16-28:16.) Dan Barry, Chenega’s Director of Operations, held 2 “town hall meetings” with Pinkerton employees and other 3 applicants to introduce Chenega and its hiring process and 4 philosophy, as well as to informally interview candidates. 5 Barry and James Gutierrez, a project manager for (Id.) 6 Chenega, recall that several individuals were rude or 7 disrespectful at the town hall meetings. 8 (“Def.’s Barry Dep.”) at 92:1-97:8, 98:7-99:7, 103:10-108:4, 9 116:1-16, 123:4-8; Gutierrez Dep. at 20:1-13, 42:23-44:19, 48:4- (Deschler Decl. Ex. 1.J 10 23.) 11 regarding a physical agility test required for employment with 12 Chenega and stated that he received health benefits as a member 13 of the military and thus wanted a “health and welfare cash out” 14 instead of benefits from Chenega. 15 97:8, 98:7-99:7, 103:10-108:4, 116:1-16, 123:4-8.) 16 that he made the decision not to hire Lembo based on Lembo’s 17 actions during the town hall meeting. 18 believe that he was rude or disrespectful during the town hall 19 meeting. 20 that Barry has described the rude or disrespectful person as tall 21 and slender, when Lembo is in fact short and “a little bit 22 overweight.” 23 (“Cogan Decl.”) (Docket No. 63) Ex. 1.B (“Pl.’s Barry Dep.”) at 24 112:15-18, 113:12-114:22; Lembo Decl. in Opp’n to Mot. for Summ. 25 J. (“Lembo Decl.”) (Docket No. 60-3) ¶ 8.) 26 was never in the military. 27 formally interviewed, and was not offered a position with 28 Chenega, which ultimately hired thirty-two security guards. Barry believed that Lembo publicly challenged Barry (Def.’s Barry Dep. at 92:1- Lembo does not (Id.) (Def.’s Lembo Dep. at 76:12-80:1.) Barry claims Lembo points out (Cogan Decl. in Supp. of Opp’n to Mot. for Summ. J. Furthermore, Lembo (Lembo Decl. ¶ 8.) 4 Lembo was never 1 (Johns Decl. in Supp. of Def.’s Mot. for Summ. J. (“Johns Decl.”) 2 (Docket No. 53) ¶¶ 10, 13; Lembo Decl. ¶¶ 6, 9.) 3 Lembo was 58 years old in September of 2007. (Pl.’s 4 Lembo Dep. at 6:10-14, 57:5-9.) He notes that, only considering 5 former Pinkerton employees, the median age of those hired was 44 6 and the median age of those not hired was 61; the mean age of 7 those hired was 43, and the mean age of those not hired was 57.3. 8 (McFadden Decl. in Opp’n to Mot. for Summ. J. (“McFadden Decl.”) 9 (Docket No. 60-5) Ex. A at 1.) The court also notes that the 10 mean age of all guards hired, as opposed to only former Pinkerton 11 guards, was 42.875; the median was 44. 12 Def.’s Mot. for Summ. J. (“Baker Decl.”) (Docket No. 51) Ex. A 13 App. B.) 14 were in their thirties; fifteen were in their forties; four were 15 in their fifties; three were in their sixties. 16 (Baker Decl. in Supp. of Four of the hired guards were in their twenties; six (Id.) The ages of all non-hired applicants, whether or not 17 former Pinkerton employees, have not been provided to the court. 18 The parties dispute the facts regarding the number of applicants 19 for the security guard positions and the number who survived the 20 first round of cuts, and Chenega itself is inconsistent in its 21 figures.1 22 the ages of the people they believe applied or survived the first 23 round of cuts or even attempted to explain the disputes regarding 24 who such a list would include. Neither party has provided a comprehensible list of 25 26 27 28 1 Chenega provided evidence that 279 people applied for the positions and 159 made the first cut. However, in a request for admissions, which were deemed admitted due to Lembo’s failure to respond (Docket No. 95), Chenega asked Lembo to admit that 262 people applied and 152 made the first cut. 5 1 Chenega emphasizes data showing that the percentage of 2 guards hired who were age forty or above is higher than the 3 percentage who applied. 4 discrimination on the basis of age and not class membership, the 5 fact that a replacement is substantially younger than the 6 plaintiff is a far more reliable indicator of age discrimination 7 than is the fact that the plaintiff was replaced by someone 8 outside the protected class.” 9 Corp., 517 U.S. 308, 313 (1996). “Because the ADEA prohibits O’Connor v. Consol. Coin Caterers That is, an employer could 10 discriminate on the basis of age by hiring someone younger than 11 the plaintiff but still age forty or above. 12 focus on class membership but will instead consider the figures 13 showing the average age of applicants hired and not hired. 14 The court will not On June 30, 2009, Lembo and thirteen other former 15 Pinkerton employees filed this action against Chenega, alleging 16 age discrimination in violation of the Age Discrimination in 17 Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and the Fair 18 Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940. 19 (Docket No. 1.) 20 III. Evidentiary Objections 21 “A party may object that the material cited to support 22 or dispute a fact cannot be presented in a form that would be 23 admissible in evidence.” 24 survive summary judgment, a party does not necessarily have to 25 produce evidence in a form that would be admissible at trial, as 26 long as the party satisfies the requirements of Federal Rules of 27 Civil Procedure 56.” 28 (9th Cir. 2003) (quoting Block v. City of Los Angeles, 253 F.3d Fed. R. Civ. P. 56(c)(2). “[T]o Fraser v. Goodale, 342 F.3d 1032, 1036-37 6 1 410, 418-19 (9th Cir. 2001)) (internal quotation marks omitted). 2 Even if the non-moving party’s evidence is presented in a form 3 that is currently inadmissible, such evidence may be evaluated on 4 a motion for summary judgment so long as the moving party’s 5 objections could be cured at trial. 6 Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006). 7 Chenega has filed twenty-five evidentiary objections See Burch v. Regents of the 8 (Docket No. 72), objecting to portions of four declarations 9 submitted by Lembo on the grounds of lack of foundation, hearsay, 10 relevance, lack of personal knowledge, speculation, improper 11 opinion testimony, improper legal or expert conclusions, 12 vagueness and ambiguity, lack of authentication, and unreliable 13 expert testimony. 14 (Docket Nos. 61, 62), objecting to portions of two declarations 15 submitted by Chenega on the grounds of lack of foundation, 16 relevance, vagueness and ambiguity, lack of authentication, and 17 hearsay. 18 Lembo has filed seven evidentiary objections Objections to evidence on the ground that the evidence 19 is irrelevant, speculative, argumentative, vague and ambiguous, 20 or constitutes an improper legal conclusion are all duplicative 21 of the summary judgment standard itself. 22 Univ. of Cal., 433 F. Supp. 2d 1110, 1119-20 (E.D. Cal. 2006). 23 court can award summary judgment only when there is no genuine 24 dispute of material fact. 25 and thus relevance objections are redundant. 26 objecting, parties should argue that certain facts are not 27 material. 28 legal conclusions, or argumentative statements, are not facts and See Burch v. Regents of A It cannot rely on irrelevant facts, Instead of Similarly, statements based on speculation, improper 7 1 can only be considered as arguments, not as facts, on a motion 2 for summary judgment. 3 of this evidence, lawyers should challenge its sufficiency. 4 Objections on any of these grounds are superfluous, and the court 5 will overrule them. 6 Instead of challenging the admissibility While the parties use various phrases to describe their 7 objections, the bulk of the objections essentially debate the 8 accuracy and relevance of the opposing party’s expert reports, 9 particularly the data and statistical analyses used in describing 10 the ages of applicants who were hired or not hired by Chenega. 11 As explained above, these objections deal not with whether the 12 reports are admissible but whether the facts contained therein 13 are true and relevant. 14 facts as it considers the parties’ arguments, and the court must 15 take all disputed facts in the light most favorable to the non- 16 moving party, but the court need not rule on the admissibility of 17 such facts when no reason has been shown why they would not be 18 admissible at trial. 19 The court considers the relevance of the In the interest of brevity, as the parties are aware of 20 the substance of their objections and the grounds asserted in 21 support of each objection, the court will not review the 22 substance or grounds of the individual objections here. 23 parties’ objections are all overruled. 24 IV. 25 The Discussion The ADEA makes it illegal for an employer “to fail or 26 refuse to hire . . . any individual [age forty or above] . . . 27 because of such individual’s age.” 28 Similarly, FEHA makes it illegal for an employer “because of the 8 29 U.S.C. § 623(a)(1). 1 . . . age . . . of any person, to refuse to hire or employ the 2 person.” 3 Cal. Gov’t Code § 12940(a). On a defendant’s motion for summary judgment, claims of 4 disparate treatment based on age under the ADEA are evaluated 5 pursuant to the burden-shifting framework provided in McDonnell 6 Douglas Corp. v. Green, 411 U.S. 792 (1973). 7 Mineta, 541 F.3d 929, 932 (9th Cir. 2008). 8 discrimination under FEHA are subject to that same analysis. 9 Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. See Whitman v. Claims of age 10 1996); see Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 354 (2000) 11 (“Because of the similarity between state and federal employment 12 discrimination laws, California courts look to pertinent federal 13 precedent when applying our own statutes.”). 14 Under the McDonnell Douglas framework, “the burden of 15 production first falls on the plaintiff to make out a prima facie 16 case of discrimination.” 17 1090, 1094 (9th Cir. 2005). 18 establishes his prima facie case, the “burden of production then 19 shifts to the employer, who must present evidence sufficient to 20 permit the factfinder to conclude that the employer had a 21 legitimate, nondiscriminatory reason for the adverse employment 22 action.” 23 nondiscriminatory reason for its actions, the plaintiff, in order 24 to survive summary judgment, then bears the burden of supplying 25 evidence to the court that the reason advanced by the employer 26 constitutes mere pretext for unlawful discrimination. 27 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 28 (1993)). Id. Coghlan v. Am. Seafoods Co., 413 F.3d If a plaintiff successfully Once the employer articulates a legitimate, 9 See id. 1 “[T]he plaintiff in an employment discrimination action 2 need produce very little evidence in order to overcome an 3 employer’s motion for summary judgment . . . because ‘the 4 ultimate question is one that can only be resolved through a 5 searching inquiry--one that is most appropriately conducted by 6 the factfinder, upon a full record.’” 7 Davis, 225 F.3d 1115, 1124 (9th Cir. 2000) (citing Schnidrig v. 8 Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). 9 Ninth Circuit recognizes “the importance of zealously guarding an 10 employee’s right to a full trial, since discrimination claims are 11 frequently difficult to prove without a full airing of the 12 evidence and an opportunity to evaluate the credibility of the 13 witnesses.” 14 (9th Cir. 2004). 15 16 A. Chuang v. Univ. of Cal. The McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 Prima Facie Case To make out a prima facie case of age discrimination 17 for failure to hire, a plaintiff must show that (1) he was at 18 least forty years old at the time of the alleged discrimination; 19 (2) he was subjected to an adverse employment action; (3) he was 20 otherwise qualified for the position; and (4) after he was 21 rejected, a substantially younger applicant was selected.2 22 Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 459-60 (6th Cir. 23 2004); Zaccagnini v. Charles Levy Circulating Co., 338 F.3d 672, See 24 25 26 27 28 2 Chenega cites to Gross v. FBL Financial Services, Inc., --- U.S. ----, 129 S. Ct. 2343 (2009), for the proposition that a plaintiff must establish that age was the “but-for” cause for the employer’s adverse action and that the ADEA does not authorize a “mixed-motives” age discrimination claim. Id. at 2350-51. Gross dealt with jury instructions regarding the burden at trial; it did not add an element to the prima facie case. 10 1 675 (7th Cir. 2003); Cotton v. City of Alameda, 812 F.2d 1245, 2 1248 (9th Cir. 1987); Guz, 24 Cal. 4th at 355 (“Generally, the 3 plaintiff must provide evidence that (1) he was a member of a 4 protected class, (2) he was qualified for the position he sought 5 or was performing competently in the position he held, (3) he 6 suffered an adverse employment action, such as termination, 7 demotion, or denial of an available job, and (4) some other 8 circumstance suggests discriminatory motive.”). 9 factor, a plaintiff may instead show “through circumstantial, As to the fourth 10 statistical, or direct evidence that the discharge [or failure to 11 hire] occurred under circumstances giving rise to an inference of 12 age discrimination.” 13 1421 (9th Cir. 1990). 14 selected applicant may be a member of the protected class so long 15 as he is substantially younger than the plaintiff. 16 Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (“The 17 fact that one person in the protected class has lost out to 18 another person in the protected class is thus irrelevant, so long 19 as he has lost out because of his age.”). 20 Rose v. Wells Fargo & Co., 902 F.2d 1417, The Supreme Court has held that the O’Connor v. Lembo has satisfied the first three elements of a prima 21 facie case by showing that he was fifty-eight years old at the 22 time of the alleged discrimination, Chenega did not hire him when 23 he applied, and he was qualified for the position, having served 24 in the same position with Pinkerton for three years. 25 As to the fourth prong, “the guidelines set forth in 26 McDonnell Douglas were intended to be a flexible blueprint. . . . 27 What must be shown to support an inference that the plaintiff was 28 discriminated against depends on the facts of each case.” 11 Peters 1 v. Lieuallen, 693 F.2d 966, 969 (9th Cir. 1982). 2 of the hired guards was approximately 44, which is significantly 3 younger than Lembo’s age. 4 an inference of discrimination, and Lembo has thus satisfied his 5 burden of showing a prima facie case. 6 B. The average age This evidence is sufficient to support Nondiscriminatory Reason Because Lembo has established a prima facie case of age 7 8 discrimination, Chenega must produce a legitimate, 9 nondiscriminatory reason for failing to hire Lembo. Davis v. 10 Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). 11 states that Lembo was not hired because he was rude and 12 aggressive at a town hall meeting. 13 (Docket No. 39) at 4:5-21.) 14 nondiscriminatory reason for failing to hire an applicant, and 15 thus the burden shifts back to plaintiff. 16 C. 17 Chenega (Def.’s Mot. for Summ. J. This constitutes a legitimate, Pretext In light of Chenega’s proffered reason for failing to 18 hire him, Lembo must now adduce evidence “show[ing] that the 19 ‘reason is pretextual either directly by persuading the court 20 that a discriminatory reason more likely motivated the employer 21 or indirectly by showing that the employer’s proffered 22 explanation is unworthy of credence.’”3 Davis, 520 F.3d at 1089 23 24 25 26 27 28 3 Earlier case law suggests that a plaintiff who relies on circumstantial evidence to show pretext must produce “specific” and “substantial” evidence. See, e.g., Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998). Those cases have been questioned in light of the Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), in which the Court affirmed the sufficiency of circumstantial evidence. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1030-31 (9th Cir. 2006) (questioning the continued viability of Godwin). 12 1 (quoting Chuang, 225 F.3d at 1123-24). 2 advised that showing “the ultimate fact of intentional 3 discrimination is obviously different and more difficult than the 4 burden imposed on a plaintiff to raise a triable issue of fact as 5 to pretext sufficient to defeat summary judgment.” 6 Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007). 7 The Ninth Circuit has Noyes v. Statistical evidence, internal inconsistencies, and 8 “shifting explanations” are examples of forms of indirect 9 evidence that may tend to show pretext. E.g., Diaz v. Eagle 10 Produce Ltd. Partnership, 521 F.3d 1201, 1212-14 (9th Cir. 2008); 11 Coghlan, 413 F.3d at 1095; Nidds v. Schindler Elevator Corp., 113 12 F.3d 912, 918 (9th Cir. 1996); see also Vessels v. Atlanta Indep. 13 Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (evidence of 14 pretext should show “such weaknesses, implausibilities, 15 inconsistencies, incoherencies, or contradictions in the 16 employer’s proffered legitimate reasons for its actions that a 17 reasonable factfinder could find them unworthy of credence”) 18 (internal quotation marks omitted). 19 Lembo offers several pieces of evidence that, taken 20 together, plausibly show that Chenega’s given reason for failing 21 to hire Lembo was pretextual. 22 as to whether Lembo actually made the inflammatory statements 23 Barry claims he made at the meeting, and Lembo provides evidence 24 that Barry’s description does not fit Lembo. 25 required applicants to list their ages on the application forms, 26 which is not direct evidence of discrimination but should be 27 closely scrutinized. 28 by Chenega was significantly younger than Lembo’s age. First, there is a factual dispute Second, Chenega Third, the average age of the guards hired 13 While any 1 of this evidence on its own might be insufficient to survive 2 summary judgment, a reasonable factfinder could take Lembo’s 3 evidence together and conclude that Chenega’s proffered 4 explanation is unworthy of credence. 5 Cerebral Palsy/Spastic Children’s Found. of L.A. & Ventura 6 Cntys., 173 Cal. App. 4th 740, 758 (2d Dist. 2009) (stating that 7 evidence, although independently insufficient to create a triable 8 issue, can be aggregated to defeat summary judgment). 9 See Johnson v. United Lembo first disputes Chenega’s explanation, contending 10 that he never made inflammatory statements at a town hall 11 meeting. 12 of the military, and thus would not have made a statement about 13 his military experience. 14 being tall and thin, when he is in fact short and slightly 15 overweight. 16 believing Lembo to be one of the people speaking at the town hall 17 meeting or that Chenega’s proffered explanation for failing to 18 hire Lembo is false. 19 the basis of mistaken identity, Lembo cannot recover for age 20 discrimination. 21 App. 4th 997, 1005 (4th Dist. 1997) (“The [employee] cannot 22 simply show that the employer’s decision was wrong or mistaken, 23 since the factual dispute at issue is whether discriminatory 24 animus motivated the employer, not whether the employer is wise, 25 shrewd, prudent, or competent.” (quoting Fuentes v. Perskie, 32 26 F.3d 759, 765 (3d Cir. 1994))). 27 evidence indicating discriminatory animus, it is not clear that 28 the decision not to hire Lembo was an innocent mistake. As evidence, he notes that he has never been a member Furthermore, Barry described Lembo as This indicates either that Barry was mistaken in If Barry refused to hire Lembo merely on See Hersant v. Dep’t of Social Servs., 57 Cal. However, given Lembo’s other 14 1 Chenega’s requirement that applicants provide their 2 ages on the application does not constitute direct evidence of 3 age discrimination. 4 employment application is not improper, see 29 C.F.R. § 1625.5, 5 and Chenega argues that it needed the age information to ensure 6 that applicants met the minimum age of twenty-one. 7 “because the request that an applicant state his age may tend to 8 deter older applicants or otherwise indicate discrimination 9 against older individuals, employment application forms that Merely asking for an applicant’s age on an However, 10 request such information will be closely scrutinized to assure 11 that the request is for a permissible purpose and not for 12 purposes proscribed by the Act.” 13 Id. Finally, Chenega, knowing the ages of the applicants, 14 hired guards whose average age was fourteen years younger than 15 plaintiff and much younger than the average age of the former 16 Pinkerton guards who were not hired. 17 Taken together, the evidence presented by Lembo creates 18 a genuine dispute as to whether Chenega’s reason for failing to 19 hire Lembo was a pretext for age discrimination. 20 the court will deny Chenega’s motion for summary judgment on 21 plaintiff’s claims for age discrimination under the ADEA and 22 FEHA.4 Accordingly, 23 24 25 26 27 28 4 The court declines to address Chenega’s argument on Lembo’s claims for punitive damages under FEHA and liquidated damages under the ADEA. Federal Rule of Civil Procedure 56(g) provides that if a court does not grant all relief requested by a motion for summary judgment, “it may enter an order stating any material fact--including an item of damages or other relief--that is not genuinely in dispute and treating the fact as established in the case.” Fed. R. Civ. P. 56(g) (emphasis added). The Advisory Committee’s notes on the 2010 amendments to Rule 56 provide that “[e]ven if the court believes that a fact is not 15 1 IT IS THEREFORE ORDERED that Chenega’s motion for 2 summary judgment or, in the alternative, partial summary judgment 3 be, and the same hereby is, DENIED. 4 DATED: May 9, 2011 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 genuinely in dispute it may refrain from ordering that the fact be treated as established. The court may conclude that it is better to leave open for trial facts and issues that may be better illuminated by the trial of related facts that must be tried in any event.” Id. advisory committee’s notes on 2010 amendments. Given that the Rule formerly stated that a court “shall” enter such an order (prior to 2007 amendments), and then that the court “should” enter such an order (prior to 2010 amendments), the current language that a court “may” do so indicates that courts have considerable discretion not to do so. 16